krewson v. quincy, 1st cir. (1996)

7/26/2019 Krewson v. Quincy, 1st Cir. (1996)

1/32

USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 92-2437

DAVID S. KREWSON,

Plaintiff - Appellee,

v.

CITY OF QUINCY, ET AL.,

Defendants - Appellees,

____________________

JOHN MCDONOUGH,


2/32

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, Senior U.S. District Judge] __________________________

____________________

Before

Boudin, Circuit Judge, _____________

Aldrich, Senior Circuit Judge, ____________________

and Young,* District Judge. ______________

_____________________

David C. Jenkins, with whom Grady and Dwyer was on brief________________ _______________

appellant.

Robert LeRoux Hern ndez for appellee David S. Krewson. _______________________


3/32

____________________

January 23, 1996

____________________

____________________

* Of the District of Massachusetts, sitting by designation.

YOUNG, District Judge. David S. Krewson ("Krews YOUNG, District Judge. _______________


4/32

originally brought this action against Quincy Police Lieute

John McDonough ("McDonough"), McDonough's two immediate su

visors, and the City of Quincy (the "City") pursuant to 42 U.

1983 and Mass. Gen. L. ch. 12, 11I for violating his c

rights during the course of Krewson's arrest and detentio

murder charges.1 Krewson's complaint also stated claims u

Mass. Gen. L. ch. 258 (negligence) and common law theories

false arrest, false imprisonment, assault and battery, malic

prosecution, and intentional infliction of emotional distress

After a four-day trial, the district court gra

directed verdicts to both supervisors on all counts, to the

on all counts except negligence under Mass. Gen. L. ch. 258,

to McDonough on all counts but those arising out of certai

his actions on October 12, 1986. The jury found that the


5/32

was not liable for negligence, and returned a verdict in favo

McDonough on Krewson's federal civil rights claim. The jury

McDonough liable, however, for intentionally inflicting emoti

distress on Krewson (awarding $5,000) and for violating

Massachusetts Civil Rights Act, awarding Krewson $1,500 on

latter claim. Judgment entered on March 20, 1992. None of

parties appealed this judgment.

Thereafter, Krewson filed an application under

Gen. L. ch. 12, 11I, seeking $67,387 in attorneys' fees (b

on 305.9 attorney hours and 154.7 law clerk hours) and $13,26

____________________

1 The charges against Krewson were ultimately dismissed.

-2-


6/32

in costs, for a total of $80,649.29. McDonough's counsel ma

objection to this application despite Massachusetts Dist

Court Local Rule 7.1(B)(2), which requires the filing of wri

objection to such a motion within fourteen days after ser

The district judge allowed the fee application by written o

which, in its entirety, reads:

I find that the attorney did the work

certified, that his client prevailed, and

that the rates charged are reasonable and


7/32

representative of rates in the community

for comparable legal services. The

petition is allowed.

Margin Endorsement of Petition for Fees, Addendum to Appell

Brief at 1.

This was enough to catch the attention of McDonou

counsel, who promptly moved for reconsideration, belat

briefing the relevant issues. The district judge denied

motion, and this appeal followed.

I. STANDARD OF REVIEWI. STANDARD OF REVIEW______________________

When, in determining a fee award, a district c

carefully "weigh[s] the factors to be considered and arrive[s

an award within a supportable range, the appellate court will


8/32

interfere." See Nydam v. Lennerton, 948 F.2d 808, 813 (1st___ _____ _________

1991) (quoting Wojtkowski v. Cade, 725 F.2d 127, 131 [1st__________ ____

1984]). Thus, this Court will reverse "only for mistake of

or abuse of discretion." Lipsett v. Blanco, 975 F.2d 934,_______ ______

(1st Cir. 1992); United States v. Metropolitan Dist. Comm'n,_____________ __________________________

F.2d 12, 14-15 (1st Cir. 1988).

-3-


9/32

II. ANALYSIS II. ANALYSIS _____________

Where a request for attorneys' fees comprises a

stantive part of the state-law remedy for a state-law caus

action, the proper rule of decision governing the awar

derived from Massachusetts, rather than federal, practice.

Northern Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 475___________________ __________________

Cir. 1988) (applying Massachusetts law to the award of attorn

fees in diversity action). Thus, because Krewson here preva

on his state civil rights claims and not his 1983 claims,

proper statutory reference is Mass. Gen. L. ch. 12, 11I.

The Massachusetts Civil Rights Act provides that:

[a]ny aggrieved person . . . who


10/32

prevail[s] in an action authorized by __________

this section shall be entitled to an

award of the costs of the litigation and

reasonable attorneys' fees in an amount

__________

to be fixed by the court.

Mass. Gen. Laws Ann. 12, 11I (West 1986) (emphasis suppli

McDonough here argues both that Krewson is not a "prevai

party" within the meaning of the statute and that the

awarded were not "reasonable" in light of the small amount

money awarded Krewson by the jury. Further, McDonough ar

that the trial court committed reversible error by awar

Krewson costs, including expert witness fees, in an ac

arising under state law.

1. "Prevailing party" -- The Supreme Judicial Cour1. "Prevailing party" --

Massachusetts has "conclude[d] that the Legislature inte


11/32

'prevail' to have the same meaning [in ch. 12 11I] as it

-4-

in 42 U.S.C. 1988." Batchelder v. Allied Stores Corp.,__________ ____________________

Mass. 819, 822 (1985). As a "plaintiff who wins nominal da

is a prevailing party under 1988," Farrar v. Hobby, 113 S.______ _____

566, 573 (1992), the district court did not abuse its discre

in ruling that the jury's award of $1,500 was sufficien


12/32

entitle Krewson to prevailing party status under Massachus

law. See also Wilcox v. City of Reno, 42 F.3d 550 (9th

___ ____ ______ _____________

1994) (upholding a $66,535 fee award to plaintiff, loser o

barroom brawl with police, who won $1 on his excessive f

claim under 1988).

2. "Reasonableness" -- Although there is no control 2. "Reasonableness" --

authority on the Massachusetts standard for "reasona

attorneys' fees under the state civil rights act, courts

held that, with respect to other fee-shifting statutes

Massachusetts, there is "no pat formula for computation of

shifting awards." See, e.g., Peckham v. Continental Casu ___ ____ _______ _______________

Ins. Co., 895 F.2d 830, 841-42 (1st Cir. 1990) (awar _________


13/32

attorneys' fees for violation of Mass. Gen. L. ch. 93

diversity action). Rather, courts should "focus[] on

[counsel's] services were objectively worth." Id. at 842 (ci ___

Heller v. Silverbranch Constr. Co., 376 Mass. 621 [1

[Hennessey, C.J.]). In making this determination courts

consider a variety of factors, including the nature of the c

the time and labor required, the amount of damages involved,

result obtained, the experience and reputation of the attor

the usual price charged by other attorneys for similar work,

-5-


14/32

the amount of awards granted in other cases. See Linthicu___ ________

Archambault, 379 Mass. 381, 388-89 (1979). ___________

Despite the brevity of his endorsement, the dist

judge here explicitly found that "the attorney did the wor

certified, that his client prevailed, and that the rates cha

are reasonable and representative of rates in the community

comparable legal services." Margin Endorsement of Petition

Fees, Addendum to Appellee's Brief at 1. In so doing,

district judge adopted the calculation proffered by plainti

attorney. This is sufficient to constitute a "clear explana


15/32

of the reasons undergirding . . . [the] fee award," and enti

the trial court's determination to deference. Peckham, 895_______

at 842; see also Stowe v. Bologna, 417 Mass. 199, 203 (1 ___ ____ _____ _______

(stating that the trial court should start from the amount

time documented by the plaintiff's attorney and then de

whether these calculations are reasonable, taking into acc

the public interest in having persons with meritorious cl

adequately represented) (fee award for violation of rent con

statute); Fontaine, 415 Mass. at 324 ("[t]he amount o________

reasonable attorney's fee, awarded on the basis of statu

authority . . . is largely discretionary with the judge, who

in the best position to determine how much time was reason

spent on a case, and the fair value of the attorney's service


16/32

Deary v. City of Gloucester, 9 F.3d 191, 197 (1st Cir. 1 _____ ___________________

(stating that appellate courts should defer to any thoug

rationale articulated by the trial court when reviewing a

-6-

award); United States v. Metropolitan Dist. Comm'n, 847 F.2d_____________ _________________________

20 (1st Cir. 1988) ("The district court -- which . . .


17/32

frequently lived with the litigation and the lawyers for

periods of time, and which is likely to be more familiar wit

marketplace -- has the best coign of vantage").

Moreover, where Massachusetts courts have reviewe

awards pursuant to remedial statutes, they have held tha

________

award of reasonable attorneys' fees should not be reduce___

reflect the actual amount of the jury award. See, e.g., Sani ___ ____ ___

Inc. v. Ilco Unican Corp., 413 Mass. 627, 633-34 (1992) (hol ____ _________________

that because of the nature of the case and the public inte

served by the "citizen enforcement" provision of

Massachusetts hazardous waste statute, courts may not reduc

award of reasonable attorneys' fees by a percentage of resp

costs recovered); Olmstead v. Murphy, 21 Mass. App. Ct. 664,


18/32

________ ______

rev. denied, 397 Mass. 1102 (1986) ("[w]hen the public has____________

here, a particular interest in the vindication of a legal ri

the market value of legal services . . . should not

automatically discounted because that value is high in rela

to the amount recovered") (fee award under Mass. Gen. L. ch.

34A); see also Fontaine v. Ebtec Corp., 415 Mass. 309,_________ ________ ____________

(1993) (determining that in employment discrimination case, "

market rates for time reasonably spent should be the b

measure of reasonable fees, and should govern unless there

special reasons to depart from them") (fee award pursuan

Mass. Gen. L. ch. 151B, 9).

-7-


19/32

Because the policy interests underlying fee a

under federal civil rights statutes are similar to t

underlying fee awards in Massachusetts civil rights cases,

law under 1988 provides additional guidance. The Supreme C

has recognized that a plaintiff who obtains relief in a c

rights lawsuit, especially "in the area of individual po

misconduct," acts as a private attorney general deterring fu


20/32

violations and that, therefore, consistent with congressi

intent, "reasonable attorney's fees . . . are not conditi

upon and need not be proportionate to an award of money dama

City of Riverside v. Rivera, 477 U.S. 561, 574-76 (1 ___________________ ______

(upholding $245,456.25 fee award based on jury awar

compensatory and punitive damages of $13,300 for federal cl

and $20,050 for state claims). Likewise, courts in this cir

have held that in federal civil rights cases a fee award is

limited by the size of the recovery but may, in appropr

circumstance, greatly exceed it. See Lewis v. Kendrick, 944___ _____ ________

949, 957 (1st Cir. 1991); Gonz les v. Jillson, 642 F. Supp.________ _______

(D. Mass. 1986) (Tauro, J.) (finding in a police brutality

that the award of $30,922.50 in attorneys' fees when the


21/32

awarded plaintiff $1,000 was not excessive because "[

significance of the monetary award [was] outweighed by the

portant public interests vindicated by the general

verdict"). "No other result could comport with the princ

that plaintiffs should have an unrestricted opportunity

vindicate their civil rights." Lewis, 944 F.2d at 957. T _____

-8-


22/32

as a remedial civil rights statute, 11I is entitled to a

liberal construction of its terms than other fee shif

statutes such as Mass. Gen. L. ch. 93A. See Batchelder,___ __________

Mass. at 822.

3. Successful vs. unsuccessful claims -- In3. Successful vs. unsuccessful claims --

respect, however, the summary endorsement of the district j

was totally silent. Krewson submitted a fee application

claimed recompense for the entire time his attorney s

pursuing the case. In fact, he "prevailed" on but a portio

his claims, and those but modestly. The endorsement of

district judge nowhere considers the time Krewson spent advan

unsuccessful theories of liability. With respect to

analogous fee shifting provision of Mass. Gen. L. ch. 93A,


23/32

have held that if a plaintiff prevails on some of his claims

loses on others, the fee award may be limited to the time s

proving the successful claims, unless it can be shown that__________

claims were interconnected. See Peckham, 895 F.2d at 84 ___ _______

(citing Hanner v. Classic Auto Body, Inc., 10 Mass. App. Ct.

123-24 [1980]); Equitable Life Assoc. Soc. v. Porter-Engle ___________________________ ____________

867 F.2d 79, 91 (1st Cir. 1989) (where Chapter 93A viola

proven, fees recoverable only for "any meaningful amount of l

work . . . independently required" by the dereliction); Whyt___

Connecticut Mut. Life Ins. Co., 818 F.2d 1005, 1011 n.20_______________________________

Cir. 1987) (similar). Here, Krewson claimed false arr

assault and battery, and false imprisonment -- among other t


24/32

-- arising out of certain events taking place on October

-9-

1986. He lost all these claims. This, his counsel tol

jury, was one half of his case; the events of October 12

prised the other half. App., vol. III at 4-95. The dist

judge so charged the jury, keeping the claims distinct jus

Krewson's counsel had argued. Id. at 4, 104-06. ___


25/32

On this record, there is no adequate basis for

cluding that all Krewson's claims are so sufficiently in

connected as to warrant a fee award in the total sum claime

Krewson. Compare Wagenmann v. Adams, 829 F.2d 196, 225 (1st_______ _________ _____

1987) (ruling that the suit at issue could not be viewed a

series of discrete claims for purposes of fee award under

where "[a]ll of the triable issues arose out of a short, vis

linked series of events"). Indeed, particularly having in

that the burden is upon Krewson to show an interconnec

between the failed claims and the successful one, not only

they, on their face, appear separate, but they were so presen

Krewson cannot try on the basis of separateness,

facilitated the jury's finding in his favor on at least par


26/32

the case, and then, when it comes to fees, contend connectedn

This is not to say that some of the depositions

other preparations were not related both to the events of Oct

5-6 and those of October 12. So long as the attorney's wor

reasonably necessary for the prosecution of the October

claims, the district judge can properly charge these fees

McDonough. As we said in Peckham, "in the last analysis,_______

fee-shifting anodyne focuses on 'what [counsel's] services

-10-


27/32

objectively worth.'" Peckham, 895 F.2d at 843, citing Helle_______ ____

Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978). __________________________

4. Costs -- The failure to consider apportionmen4. Costs --

between successful and unsuccessful claims infects the issu

costs as well. McDonough argues that the district court ab

its discretion in including expert witness fees and costs in

award. The award of costs in this case is not governed by

as asserted by McDonough. Rather, this Court applies the s

standard in evaluating claims for costs if the plain

prevailed only on the parallel state claims. See Freema___ _____


28/32

Package Mach. Co., 865 F.2d 1331, 1347 (1st Cir. 1988). W _________________

as here, the Commonwealth has granted explicit statutory c

shifting authority, there is a presumption in Massachusetts

favoring the awarding of expert witness fees. Id. at 134 ___

(upholding the granting of expert witness fees under Mass.

L. ch. 151B, 9) (citing Linthicum, 379 Mass. at 379). In l _________

of that presumption, this Court concludes that expert wit

fees may be properly awarded in a successful action under

Massachusetts Civil Rights Act. Freeman does suggest, howe _______

that an expert witness' fee can be prorated to reflect the

performed for certain claims. 863 F.2d at 1350. Here, McDon

appears to make a persuasive argument that the testimon

expert Robert DiGrazia was limited to issues relating to


29/32

first half of the case -- the arrest on October 5th (testi

which was later stricken) and the liability of the City. Ha

remanded the fee award to the district court for apportion

-11-

however, we deem it appropriate likewise to remand to

district judge the issue of costs for resolution in the f

instance.


30/32

Accordingly, the fee award is vacated and the matte_______

appropriate attorney's fees and costs is remanded to the dist

________

court for further proceedings consistent with this opinion.


31/32

-12-


32/32

krewson v. quincy, 1st cir. (1996)

Documents